 Hello and welcome to NewsClick. I am Paranjoy Guha Thakurtha and we are now going to have a discussion on the relevance of the Official Secrets Act, which is almost a century old and compare that with another law, which is in its teens. That's the Right to Information Act. In the context of recent developments that have taken place in the Supreme Court of India connected with the Rafale deal. I'm very happy to have with me here in the studio of NewsClick Venkatesh Nayak's program head at the International Non-Government Organization called the Commonwealth Human Rights Initiative and a well-known RTI activist, a Right to Information activist in his own right. The person who after persevering for more than two years came out with the information pertaining to the minutes of the meeting of the Reserve Bank of India, what happened the day demonetization was announced. Thank you. You are too generous. Not at all Venkatesh. You know in the Supreme Court what we witnessed recently in connection with the Rafale deal was the Right to Information Act which was passed in 2005, so it's barely 14 years old, early teens. And another act which came into existence in 1923, that's the Official Secrets Act, which was enacted by the British to punish spies, Indian and foreign, whereas the Right to Information Act was meant to empower ordinary citizens to ensure greater transparency in public life and ensure that those holding important positions in government would disclose information which would be of relevance and use to the public at large. Now in the context of the Rafale deal, why are these two laws become so important? Well, I suppose it's because of the proceedings that are going on in the Supreme Court of India, where the clean sheet that the Supreme Court gave last December to the Rafale deal, a review has been sought by some of the same petitioners and they have produced certain documents which have emerged in the public domain thanks to a few media houses, investigative journalism work. The Hindu news. The Hindu, A&I has put it out. Also include news click. News click. Yes, yes. So those documents seem to reveal a lot more details about the decision making process which to the best of understanding was never put before the Supreme Court when it was deciding the initial case. And perhaps things might have turned out differently. But what the government is now claiming is that these papers have not been authorized in terms of public disclosure and therefore whoever gave it to the news houses and the news media houses which have published it fall foul of the official secret sector. Let me stop you here. These documents were ostensibly stolen by some serving member of the government or a serving government officer or somebody retired. But wait, within 24 hours the attorney general of India, the senior most, top most law officer, he's a constitutional authority, he does a flip flop. First he says no, I wasn't really threatening the media houses with legal action but then he said actually these were photocopied documents. So somewhere along the line even the government realized that the claim that the AG made in the Supreme Court that these could come under the official secrets act was somewhat tenuous. Yes, first the charge of them being stolen would mean that they are no longer available with government itself. So that charge will not stick if these are photocopies. So obviously there is no stealing. There is probably unauthorized photocopying now under which law is that an offense. So they obviously have to bring it under the official secrets act but then comes this big question that is it an act of stealing of documents photocopying them and putting them back and making the copies available in the public domain? Is that all that there is to it or is there a larger question of a conscientious officer or two in the establishment who would want the public to get to know how a deal was arrived at for spending taxpayers' money on national security? Alright, now interestingly Venkatesh the question that would arise nobody is as of now challenged the authenticity of those documents. Yes. That means whether they were stolen whether they were photocopied the veracity of that information contained in those documents the credibility is not in doubt or apparently not in doubt. Now the question is in this day and age of the right to information act what are official secrets and what indeed is the relevance of the official secrets act which is as we've already mentioned a colonial era statute and why should the government claim special privilege over certain kinds of documents if these documents pertain to issues which are in the public interest. I mean because if you go back to the act you're looking at army, navy, air force, secrets affecting the sovereignty of the country, the integrity of the country and you are saying if somebody kind of steals such information and passes it on to quote unquote an enemy then that person can actually be jailed. You know the jail term could vary from three years to 14 years you know these could be like maps, plans, technical documents but these are clearly nothing of that sort that these pertain to commercial negotiations. Yes, what's interesting is how broadly the government seems to be interpreting these you know papers how they're labeling these papers actually as official secrets. The official secrets act itself does not contain an explicit definition. There are certain kinds of actions that have been criminalized and there there is a reference to certain kinds of information like you pointed out, sketch, maps, plans, etc. but relating to matters that have a negative effect on India's sovereignty, integrity or our national security and communicating any such information without proper authorization. One is communicating it to an enemy, the other is communicating without proper authorization. Now both are you know turned into offenses however like you quite rightly pointed out in the age of the right to information when people can ask for this information and get it as a matter of right. Then does the official secrets act in this context hold any relevance? In my humble opinion it should not a like you quite rightly pointed out it's a procurement issue, b it's a matter of enormous public debate. Now in other words what you're suggesting is that in the Rafale case if the government is spending money approximately 60,000 crore rupees the money which is belonging to the people of the country is from the consolidated front of India and you're using it to acquire capital equipment for the Indian Air Force. Now nobody is here saying the technical specifications have to be disclosed but what's wrong in disclosing the the how much money you're paying? Obviously that has never been explained adequately by the government of India. What they have said in parliament and outside parliament repeatedly is that disclosure of the total value of the deal itself would be dangerous to national security that argument is not convincing but let me also point out another very interesting issue that has actually not made the headline so far. April 2018 the Indian Air Force puts out a request for information so that is where manufacturers of fighter aircraft are required to inform the government of India they put their aircrafts at the manufacture meet the specifications that are mentioned in this document and this is a 59 to 60 page document where the detailing of the aircraft that India is looking for is given at such great depth including whether the pilot can actually relieve himself in the aircraft. This is a public document it's available on the Indian Air Force website. Yes and I've downloaded it I'm planning to write about this as to how can the government actually put so much of information out in the public domain about the next set of aircraft it wants to buy deny access to information about the cost of the previous deal common sense would indicate that government would certainly not go in for aircraft that is less effective or less specialized than what it is already bought in the form of a refund. Are you suggesting that why all this is being done is because somebody somewhere wants to hide that the government has quite a lot to hide and in this particular case with it becoming such a politically hot issue with the congress president Raul Gandhi going to town saying chokadar chor hai and so on and so forth is it because it's aimed at protecting the Prime Minister of India Mr. Narendra Modi. Well it certainly appears that the honorable Prime Minister had a very important role to play in the getting of this deal signed between India and France. That's clearly revealed in the documents. Yes and of course it's also public information because the government-to-government deal between India and France of which Rafaal is a part was signed because of you know the negotiations that he had with the French counterparts so that's very clear now when he's done that and when the fashion of the day is to you know address him as the Pradhan Sevak then obviously to the malice of the country there is certainly a duty of disclosure. Okay then it is you know there are various layers that bind ministers, civil servants to keeping information they obtain secret. You have oath of secrecy of office then you have an oath you know which is there are various other you know rules the conduct rules and the documents are classified in various manners they're called confidential secret top secret but you know once again we don't really know how these are defined and and therefore the question is balancing the citizens right to know with what the government or the ruling dispensation considers as secret and therefore against the national interest against the interest of the sovereign to disclose. This balance seems to be rather difficult to arrive at and because they're going to be contentions on both sides. Yes of course in fact that is what the expectation of the right to information act also is about the preamble says very clearly that they will be completing public interests some in favor of maintaining the confidentiality of sensitive information and others which would be in favor of people's right to know and people's ability to hold the government and its instruments instrumentalities accountable. The Supreme Court has actually asked the right question they've said that look if there are grave allegations being made about corruption we are not saying that it's been established but if there are grave allegations being made then should there not be an effort to put the relevant documents out in the public domain so that the court can go into them in detail and the people can also inform themselves as to what exactly is the truth. Okay then it is you know where is the in this sort of in these competing statutes one teenager the other a centenarian comes the provisions of another law which is even older than the official secret and that's the evidence act the Indian evidence act and section one two three of the act bars a government official from giving evidence in court based on unpublished documents. Now where does this fit in because under section one to four of the same law the government official can resist I mean he cannot and refuse to disclose communication that he has received in a confidential in a situation where he stole that this information is confidential and it's not in the public interest to disclose such information. Well those matters have actually been settled the language of section 123 and 124 no doubt were drafted in 1872 but there has been a wealth of jurisprudence post independence period in India where the governments claim under 123 and 124 which is sovereign immunity or government privilege now that has been converted into public interest immunity which means that information of a sensitive nature will not be disclosed only when public interest is likely to be harmed. Now that is an argument that the present government is simply not able to make in a convincing manner as far as the Rafal related papers are concerned and of course the right to information act says very clearly in at least two places once at the bottom of the section which lists the circumstances in which access to information may be legitimately denied this is section 8 2 where it says the right to information act overrides the official secrets act and again in section 22 it says not just the right to information the official secrets act but any other law for the time being enforced to the extent of inconsistency which means if any other laws says certain kinds of information cannot be given or disclosed then there must be a justification for that under the right to information act if there is no justification then irrespective of what that other law says information will have to be may be made public that is the primacy of the right to information act and despite the fact it's a teenager this is the law that prevails because this is a law that has been brought in primarily for the purpose of bringing transparency in government and therefore and public life and public life and ensure that those who are in positions of power and authority do not misuse or abuse their discretionary powers and that is my last question to you really and that is where does one go from here i'm not asking you to second guess what the supreme court could decide or not decide but you have a set of circumstances which to put it very mildly rather unusual you have information given in a sealed cover to the supreme court then the government puts in an application saying that information is wrong the grammar is wrong the facts are wrong because the government is not supposed to know after all what the controller and auditor general of india is doing the controller and auditor general then places a report on the last day of the parliament session and it provides information on one certain aspects of the deal doesn't deal with the offset contract pertaining to companies in the group headed by Anil Ambani and then at the end of the day it it also says look we wanted this disclose this information but the defense ministry didn't want to and therefore we've exceeded to the wishes or that of the defense ministry though as a constitutional authority the controller and auditor general was under no obligation to exceed to the wishes of the ministry of defense so if you sort of look at all these aspects of what has happened what are the important lessons that we need to learn lesson number one is how poorly the values that are enshrined in the right to information act are internalized in government and the government reading through a lot more homework in terms of turning itself into becoming a transparent government it's not enough to simply put facts and figures about how many toilets you built where and how many fellowships or scholarships you distribute to whom that's not enough these are policy matters of immense public importance and there has to be a concerted effort by all authorities concerned to make transparency as the norm of the day and where one authority fails to be transparent it's definitely is the responsibility of another constitutional authority which has a role to play to ensure that there is greater transparency unfortunately in this case everybody seems to be agreeing that certain kinds of information should not be placed in the public domain but none of them are able to give any logic or any reasoning beyond the fact that national security would be adversely affected how we don't know okay i think perhaps it's about time we should not just scrap the official secrets act but amend the evidence act indian evidence act and also do away with uh expertise i mean say sedition that will concept yes of course that's the other law that needs to be thrown out into the garbage bin okay thank you so much Venkatesh for giving us your time for coming here to the studio of news click and explaining so lucidly the legal issues pertaining to disclosure of information what are official secrets what can constitute evidence and the citizens right to know you just heard and watched Venkatesh Naik his program head at the international non-government organization at the commonwealth human rights initiative discussing very very important issues that concern each and every one of us as citizens of this country thank you for being with us and keep watching news click